Apple Ahead as Samsung Ban Looms

Apple currently has an upper hand in the fierce and protracted patent infringement battle with Samsung over smartphones and tablets.

For the moment, Apple appears to have an upper hand in fierce and protracted patent infringement battles with Samsung over smartphones and tablets.

Both companies are seeking rulings that would take the competitor's products off shelves. Apple's new exclusion order and injunction appeal each have a good chance of success, leaving Samsung defending itself and looking for new options of attack.

Samsung sought an exclusion order against Apple from the International Trade Commission (ITC) based on US patent number 7,706,348, involving a transport code format indicator for CDMA technology. Samsung initially won the exclusion order, but on August 2 the US Trade Representative vetoed the import ban citing concerns that the patent is a standards essential patent requiring licensing on fair, reasonable, and non-discriminatory terms.

In other words, the import ban was vetoed because it was unfair for Samsung to encourage others to use the technology by including it in the standard and then to use the threat of an exclusion order to negotiate the license. As an executive branch decision, the veto is based on policy rather than a strict legal standard.

Apple is seeking its own exclusion orders. On August 9, the ITC granted one based on patent number 7,479,949 on scrolling and translating a touch screen and patent number 7,912,501 on detecting whether or not a plugged in audio device is a microphone.

As with the earlier threat of an Apple import ban, the exclusion order will go into effect in sixty days unless President Obama or the Trade Representative vetoes the order. In this case, however, the Apple patents are not standards essential patents, so the Trade Representative’s reasons for the previous veto don't apply.

Vetoes of ITC exclusion orders are very rare, so a veto in this case is unlikely. Samsung claims to have redesigned the devices to avoid infringement, and the ITC agreed that the design-around devices do not infringe. So, it is most likely that Samsung will use the sixty-day review period to patch the remaining infringing devices to escape the ban.

I don't work for either of the companies, so I'm not directly impacted. I do prosecute patents on the network side of mobile technology, so the decisions on standards essential patents could affect the value of those patents. There is some flexibility when drafting a patent as to whether it will need to be standardized, but it's often dependent on the nature of the invention.

For consumers, what we're seeing here is that mobile phones have been replaced with newer models by the time the patentee can get an injunction or exclusion order, so I doubt we'll see the newest models taken off the shelves.

The whole Patent saga has got the maximum heads turned and created headlines around the world because these two giants are involved. And of course Apple being the US based company and Samsung on other part of the world. The culture and ethics are so very different. But its good for the patent market, it has created many more job opportunities and patent industry might get more regularized.

There are three types of "injunctions": preliminary injunctions, permanent injunctions, and exclusion orders.

A preliminary injunction can issue fairly quickly, on the order of a few months. The problem for complex electronics though is proving a nexus between the irreparable harm of infringement, usually lost market share, and the specific patents.

Permanent injunctions are issued as part of the judgment after trial. The time varies based on the complexity of the trial. The Apple v. Samsung case actually moved very quickly with a verdict in a little over a year. On appeal, Apple is arguing that a permanent injunction should have been awarded. The appeal has added almost another year.

Exclusion orders issued by the ITC can be faster, but once again depend on the complexity of the trial. Both the Samsung and Apple exclusion orders took about two years before the 60 day review period.

The delays are significant because of the relatively short product life cycles. The most advanced Samsung device in the trial was the Galaxy S2. The Samsung exclusion order only would have covered up to the iPhone 4. Therefore, the most advanced products in each case are nearing the end of their retail sales period by the time the exclusion orders go into effect.

Apple has been trying to add new Samsung devices as they are released in the second suit. The judge, however, has now refused to add the Galaxy S4 to the ongoing litigation. If Apple does achieve a permanent injunction based on a patent, it should be much faster to bring suit alleging that new products violate the injunction rather than having to start over with infringement.